PAUL L. MANSELL, JR., APPELLANT,
v.
GEORGE B. FOSS, JR., APPELLEE
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Mansell appeals a judgment favoring Attorney Foss on a breach of employment contract claim. The trial court found for Foss but on a theory not pleaded—that Foss individually held assignment rights to a fee from a law firm contract—without allowing amendment of the complaint, requiring reversal.
A plaintiff must recover, if at all, on the case made by the complaint's allegations. The trial court erred in allowing evidence of an assignment of fee rights without requiring amendment of the complaint to reflect this new theory of liability.
[1] A plaintiff must recover, if at all, on the case made by the complaint, even if the evidence would support recovery on a different theory.
[2] A judgment based on a theory not pleaded in the complaint, without amendment to conform to the evidence, constitutes reversible error.
Previewing 2 of 3 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“It is well settled that, regardless of what the evidence may otherwise show, plaintiff must recover, if at all, on the case made by her declaration.”
Establishes the fundamental principle that a plaintiff's recovery is limited to the theory alleged in the complaint, regardless of evidence presented at trial.
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Join FLexlaw to unlock all legal intelligenceFoss, an attorney, sued Mansell for breach of a written employment contract to provide legal services in a dispute involving a Monroe County garbage f…
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PEARSON, Judge.
Paul L. Mansell, Jr., appeals a final judgment rendered against him in the trial court. The plaintiff was George B. Foss, Jr., an attorney at law. Foss sued Mansell on a complaint in which he claimed damages because of the breach" of a written contract of employment whereby Mansell retained Attorney Foss for certain litigation and agreed to pay a reasonable fee therefor. Foss claimed that he performed the services but was paid nothing beyond a retainer. After trial before the court without a jury, the trial court found for Attorney Foss but upon a theory different from that set forth in the complaint. No motion was made, nor was there any suggestion by the court, that the pleadings were amended to conform to the evidence. See Fla.R. Civ.P. 1.190 and Dixie Farms, Inc. v. Timmons, 323 So. 2d 637 (Fla.3d DCA 1975). The court found as. follows:
.“1. The Court finds the defendant-and the law firm of Fowler, White, Gillen, Humkey and Trenam entered into a written contract for. the law firm to provide legal service to the defendant arising from a dispute between the defendant and certain Monroe County officials concerning a garbage franchise. The agreement was ratified by the defendant in writing, the payment of costs and retainers, and by oral acceptance.
, “2. The legal services were provided on behalf of the law firm largely by George B. Foss, Jr., and from the evidence, it appears something in excess of 900 hours were expended in behalf of the defendant in this litigation.”
On this appeal, appellant Mansell maintains that the trial court erred in allowing into evidence, as a surprise to him, an assignment to the effect that, although the work was performed by a former firm of which Foss was a member, the rights to the fee had been assigned by the firm to Foss, individually. Appellant’s position is supported by the record and we agree that such procedure requires a reversal of the judgment.' “It is well settled that, regardless of what the evidence may otherwise show, plaintiff must recover, if at all, on the case made by her declaration.” Atlantic Co. v. Orendorff, 156 Fla. 1, 22 So. 2d 260 (1945). See also Atlantic Coast Line R._ Co. v. Johnson, 40 So. 2d 892 (Fla.1949). Whereupon, the final judgment is reversed and the cause remanded to the trial court with directions to provide the plaintiff. with an opportunity to amend his complaint if he so desires.
Reversed and remanded with directions.
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Resorts Int'l, Inc. v. Charter AIR Ctr., Inc., 503 So. 2d 1293 (Fla. 3d DCA 1987)…is well settled that, regardless of what the evidence may otherwise show, plaintiff must recover, if at all, on the case made by her declaration.” Atlantic Co. v. Orendorff, 156 Fla. 1, 22 So. 2d 260, 263 (1945) (en banc); see also Mansell v. Foss, 343 So. 2d 910 (Fla. 3d DCA 1977). In the present case, Charter did not seek relief for damages suffered by its sister company in its pleadings, nor did it plead that these two companies were actually one and the same. Furthermore, there was no consent, stipulatio…1 / 2
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Arky v. Bowmar Instrument Corp., 527 So. 2d 211 (Fla. 3d DCA 1987)…a month or two. .For pre-Dober cases in which the appellate court ordered a new trial and explicitly or implicitly permitted amendment of the complaint upon remand, see Baring Industries v. Rayglo, Inc., 303 So. 2d 625 (Fla.1974); Mansell v. Foss, 343 So. 2d 910 (Fla. 3d DCA 1977); Tucker v. Daugherty, 122 So. 2d 230 (Fla. 2d DCA 1960); Edwards v. Young, 107 So. 2d 244 (Fla. 2d DCA 1958). Some post-Dober cases have continued this practice. See, e.g., Phrazer Co. v. Lawyers Title Insurance Corp., 508 So. 2d…
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Foss v. Mansell, 378 So. 2d 802 (Fla. 3d DCA 1979)…finding for Foss on a theory different from that set forth in the complaint. This court remanded the cause to the trial court with directions to provide Foss with an opportunity to amend his complaint to conform to the evidence. See Mansell v. Foss, 343 So. 2d 910 (Fla. 3d DCA 1977). After remand, Foss amended his complaint asserting, inter alia, that he was entitled to recovery of attorney’s fees, individually, and as the assignee of the law firm in which he had been a partner at the time of the alleged brea…
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Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Dixie Farms, Inc. v. Timmons, 323 So. 2d 637 (Fla. 3d DCA 1975)
- Atl. Co. v. Orendorff, 156 Fla. 1 (Fla. 1945)